I haven’t thought about wills, trusts, and estates since my 1L property class and the bar exam. Quite frankly, I found the subject boring and could barely make heads or tails of all the “fees” (which I referred to as “Fee-Fi-Fo-Fum”) and the Rule Against Perpetuities. “Dead hand control” through a will is a pretty good plot device, though, and author Nancy Naigle uses it effectively in Sweet Tea and Secrets, a novel that strains credulity at points but ends up being a pleasant read.
Sweet Tea and Secrets is interesting enough to read cover to cover, despite two small issues. First, the protagonist’s brief assertion that Ecuadorian culture is “primitive” is jarring. Second, the villains of the story and their interaction with the main character are unrealistic; e.g., it’s particularly hard to believe that Jill, the protagonist, would be so naïve. Then again, I’ve read equally unbelievable stories in the news, so maybe Jill is in good company.
The best part of the novel is grandmother Pearl’s charming, ghostly presence, not only through her loved ones’ memories and her family recipes, but also through her will. In a video accompanying her will, Pearl explains to Jill and Garrett, Jill’s ex-boyfriend:
I wanted a clause that made the two of you marry to get the property, but Conner said I couldn’t do that. So I found a loophole. I can strongly encourage you… encourage you to spend some time together.
Playing matchmaker from beyond the grave, Pearl leaves her large property to Jill and Garrett, despite the fact that the beneficiaries had broken up a year prior and Jill is in a new relationship. Pearl places conditions on the bequest: Jill and Garrett will have to keep the property for five years (not sell it) and use it only for a certain project for which they will have to break ground within the same five years. If either one decides to forego Pearl’s offer, then the property, including Jill’s childhood home, will be auctioned and the proceeds will be split three ways: a third for an animal shelter, a third for Jill, and a third for Garrett. Pearl’s hope is that the time Jill and Garrett will have to spend together as they make big decisions about the property will rekindle their romance.
Pearl’s attorney, Conner, is probably right that Pearl can’t make Jill and Garrett get married to receive the property. I did a quick Lexis search, which revealed no cases where a court addressed whether it should uphold a conditional bequest in a will that required the beneficiary to marry a specific person (a “conditional bequest” is where a testator requires a beneficiary to behave in a certain way in order to receive their inheritance). The Restatement (Second) of Property, a very influential treatise created by the American Law Institute, suggests that a testator could not include a provision in her will that requires a person marry a specific individual in order to receive their inheritance (Restatement (Second) of Prop.: Donative Transfers § 6.2). Such a provision would narrow the field of potential suitors to the point that it would unduly restrain the beneficiary’s right to marry (and thus violate the public policy encouraging marriage, which is considered a basic unit of family structure).
But courts have upheld a variety of restrictive conditional bequests that relate to a beneficiary’s love life, if, in the court’s eyes, the restrictions are “reasonable.” For example, courts have upheld provisions that require a beneficiary to marry a person of a particular faith and provisions that prohibit a beneficiary from remarrying. Thus, Pearl’s posthumous matchmaking through her will, if it were challenged in a court of law, would probably stand. The arguments supporting this type of “dead hand control” generally boil down to the belief that people can do whatever they want with their property, including bequeath it under (almost) whatever conditions they want. But, honestly, my feeling is that the deceased person’s wishes shouldn’t control the living. What’s it to them? They’re dead.
Sweet Tea and Secrets is a piece of romantic, chick lit fiction, so we all know from the get-go that Pearl’s machinations will probably work, which would be anything but a foregone conclusion in real life. The administration of estates, joint ownership of property, and money-dealings in general almost never bring two people together. Google “fighting over estate” and you’ll see thousands of examples of how such dealings rip friends and families apart.
PS. The graveyard picture is from England, somewhere along the Cotswold Way, and nowhere near Virginia, where Sweet Tea and Secrets takes place. My husband took the picture in 2006, the year we graduated from law school, took the bar exam, and got married.